South Dakota does not currently have a rule of evidence that allows for the admission of a criminal defendant's prior acts of child molestation when he is charged with child molestation. But if an incoming lawmaker has his way, that will all soon change.

Like its federal counterpart, Federal Rule of Evidence 404(b), SDCL 19-12-5 provides in relevant part that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." In other words, evidence that a criminal defendant charged with child molestation had previously molested children would be inadmissible to prove that he had a propensity to molest children and that he likely acted in conformity with that propensity at the time of the alleged crime. Or, to put it more simply, that evidence would be inadmissible to prove, "Once a child molester, always a child molester."

"In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant."

As I have noted before, this Rule was "enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, despite the overwhelming majority of lawyers, judges, legal organizations, and law professors opposing the laws when it was submitted for public comments."

But while Congress added this Rule to the Federal Rules of Evidence, most states, including South Dakota, have not followed suit. Recently elected South Dakota State Rep.-elect Lance Russell would like to change that. He plans to introduce a bill that would let juries hear evidence of prior molestations in trials where the defendant is accused of child molestation. According to Russell, "state juries need to have all the evidence in such cases - as federal juries already do."

Of course, the question is whether the probative value of such evidence is substantially outweighed by the danger of unfair prejudice that it creates. Most lawyers, judges, and law professors answered this question in the negative, and, as I have noted before, I agree with them. Now, the question will be where South Dakota legislators fall on the question.

An upcoming cold case murder trial for a man charged with the beating death and robbery of a Pennsylvania adult video store clerk should involve some interesting spousal privilege issues. Sixteen years ago, someone killed Donald V. Gosline at a Liverpool, Pennsylvania adult video store and stole $1,372 from the store. Authorities eventually brought charges against Steven Carl Buttolph after his then-wife, Marcie Piazza, contacted state troopers in 1995 to say that Buttolph committed the homicide. But Buttolph was freed when Piazza later invoked spousal immunity and refused to testify against him at a preliminary hearing.

The murder case then turned cold, but it heated up again after authorities retrieved DNA from cigarette butts found at the crime scene, used a search warrant to obtain a DNA sample from Buttolph, and found that his DNA was consistent with the DNA found on the cigarette butts (this part of the story is confusing to me because the story on the case indicates that "Buttolph acknowledged shortly after the killing that he had been in the [adult video] store the night Gosline died," so I don't know what the DNA evidence added to the equation). So, Buttolph will now stand trial. And because Buttolph and Piazza have now divorced, authorities have wondered whether Piazza, whom has not yet been located, can now testify against Buttolph.

Specifically, "Perry County District Attorney Charles F. Chenot III said Monday that either spouse can raise the spousal privilege, and his legal research indicates that it may still be in force even after a divorce." Is he correct? Well, to find out, we first need to ask which spousal privilege would apply to Piazza's possible testimony. 42 Pa.C.S. Section 5914 states in relevant part that:

"Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial."

Thus, if Buttolph told Piazza in private and while they were married that he murdered Gosline, Piazza would not be able to testify about this confidential communication during the course of the marriage. And, as in most states, under this privilege, "disclosure of confidential communications made during a marriage is prohibited even following the dissolution of the marriage." Commonwealth v. Weiss, 776 A.2d 958, 967-69 (Pa. 2001).

And when we think of the rationale behind this privilege, it makes sense. Confidential marital communications are privileged because we want spouses to feel free to speak openly and honestly to each other without the fear that those communications will later be aired out in open court. If the privilege terminated with the termination of the marriage, there would be no point to the privilege because that is exactly the time when one would expect disclosure. This would be like finding that the attorney-client privilege ends with the end of the attorney-client relationship.

But, from the article on the case, it appears that at least some of Piazza's possible testimony would not be covered by 42 Pa.C.S. Section 5914. According to that article, state troopers have said that Gosline told them "that she remembered Buttolph had a large, untreated gash on his right hand shortly after Gosline died." This proposed testimony would concern what Piazza observed, not what Buttolph told her, meaning that it would not be covered by 42 Pa.C.S. Section 5914 and could only potentially be covered by 42 Pa.C.S. Section 5913, which states in relevant part that:

"Except as otherwise provided in this subchapter, in a criminal proceeding a person shall have the privilege, which he or she may waive, not to testify against his or her then lawful spouse...."

And the obvious problem for Buttolph on this front is that this privilege clearly states that it only applies to a person's "then lawful spouse," meaning that the privilege "is extinguished upon death or divorce." Commonwealth v. Hancharik, 565 A.2d 782, 790 (Pa.Super. 1989). Thus, if Piazza is located, she cannot claim that testimony on this matter or other things that she observed would be covered by privilege.

The recent opinion of the Fifth Circuit in United States v. Skilling, 2009 WL 22879 (5th Cir. 2009), reveals that the forfeiture by wrongdoing doctrine can apply not only against criminal defendants but also against the prosecution.

In Skilling, former Enron Corporation CEO Jeffrey K. Skilling Jeffrey K. Skilling appealed from his convictions for conspiracy, securities fraud, making false representations to auditors, and insider trading. And on appeal, he sought to prove prosecutorial misconduct by presenting hearsay evidence that potential witnesses did not meet with him because they feared governmental reprisal. According to Skilling, this hearsay evidence should have been admissible at trial pursuant to Federal Rule of Evidence 804(b)(6), which deems admissible "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness."

Now, usually, Rule 804(b)(6) applies when a criminal defendant kills or incapacitates a potential witness for the prosecution, but the Fifth Circuit correctly noted that the Rule also applies "where the government is responsible for making a witness unavailable." But the problem for Skilling was that he did not claim at trial that the hearsay evidence was admissible under Rule 804(b)(6), meaning that the Fifth Circuit could only reverse for plain error. And the problem for Skilling was that he could not demonstrate such plain error.

And the reason why he couldn't do so is actually pretty interesting. The hearsay evidence that Skilling presented were the hearsay declarations of an attorney for several former Enron employees. But what he failed to present was any material independent of the hearsay itself which tended to indicate wrongdoing by the government. According to the Fifth Circuit, this was fatal because

"this court has not resolved whether, to invoke Rule 804(b)(6) properly, a party must make this evidentiary showing with material independent of the hearsay itself. This is a question of first impression, and there are persuasive arguments for either position or for a hybrid of the two. This question is especially difficult here given that it was the defense counsel who made the uncorroborated hearsay declarations. Under such circumstances, any error is not plain."

I agree with the Fifth Circuit's ruling that there could not be plain error because the hearsay issue was a question of first impression. That said, I wonder how the court would have dealt with the issue if Skilling had preserved it for appeal, and it will be interesting to see which approach the Fifth Circuit and other courts ultimately take on the "independent material" issue.

(The Fifth Circuit did vacate Skilling's sentence and remand for resentencing based upon a different issue)

I often criticize courts on this blog for the way that they apply Federal Rule of Evidence 606(b) and state counterparts, but the recent opinion of the Court of Appeals of Texas in Gutierrez v. Martinez, 2008 WL 5392023 (Tex.App.-Houston [1 Dist.] 2008), seems to address a situation where the court had no other choice but to apply the anti-jury impeachment rule.

In Martinez, Everardo Gutierrez and Maria Sanchez were involved in a traffic accident with Arturo Martinez. In that accident, Martinez's car collided into the rear of Gutierrez's SUV, which Gutierrez was driving, and in which Sanchez was a passenger, along with their infant, Ashley. Gutierrez subsequently sued Martinez, who did not contest his negligence in causing the collision. Thus, the ensuing trial solely addressed the issue of whether and to what extent Martinez caused the appellants' damages for physical pain/mental anguish and their reasonable expenses of necessary medical care. And after that trial, "[t]he jury awarded appellants no damages."

This result seemed strange to me, and it turns out that the trial court improperly excluded the appellants from presenting affidavits concerning the cost and necessity of medical services provided to them in the wake of the accident. Of course, the result was strange to the appellants as well, and they filed a motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial, in which they complained of the trial court's exclusion of the affidavits and argued that it led to the rendition of an improper verdict.

And in that motion, they argued that

"the jury considered the absence of such affidavits during their deliberations and would have awarded all the damages requested if the affidavits had been provided. Appellants apparently base this assertion on allegations made in post-trial affidavits of two trial counsel regarding hearsay statements of a juror with whom counsel had a conversation after trial."

The Court of Appeals of Texas, however, correctly noted that it could not consider the jurors' post-trial affidavits pursuant to, inter alia, Texas Rule of Evidence 606(b), which states that:

"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve."

According to the court:

"We do not consider any of these affidavits because the rules of civil procedure and civil evidence prohibit the consideration of evidence of statements by jurors regarding matters or statements that occurred during the course of jury deliberations, unless it involves an outside influence."

As I noted above, I agree with the Court of Appeals of Texas on this point. The affidavits of the jurors seem speculative at best, and if they were admitted would encourage the type of judicial second guessing that Rule 606(b) is designed to avoid.

That said, while I agree with this evidentiary ruling by the Court of Appeals, I disagree with its ultimate decision to affirm the trial court's ruling. I won't go into the details of the case on this blog, but I invite readers to check out the court's opinion to determine whether you think that the appeal was properly handled.

The recent opinion of the Supreme Court of Alaska in Sowinski v. Walker, 2008 WL 5413724 (Alaska 2008), reveals that a litigant must ask for a limiting instruction to receive one. But it also reveals the seeming futility of asking for a limiting instruction when evidence of past acts are used to prove common plan or scheme.

Walker arose from an ATV accident which occurred after minors Justin Vaughn and Robert Walker consumed alcohol they had allegedly purchased at DelRois Liquor Store. After drinking, the minors and Crystal Brueggeman rode an ATV and struck a cable, resulting in the deaths of Vaughn and Walker "within seconds or minutes."

The personal representatives of the decedents' estates and the decedents' families thereafter sued several parties, including DelRois, whom they sued for providing alcohol to the underage decedents and against whom they sought punitive damages. Ultimately, the Superior Court found that DelRois was sixty-two percent responsible for the accident, and several appeals ensued including an appeal by DelRois.

One of the grounds for DelRois' appeal was that the court erred in admitting the testimony of other minors, who claimed that DelRois sold alcohol to other minors (in addition to selling alcohol to the decedents on the night in question). In rejecting this argument, the Supreme Court of Alaska held in part that the

"plaintiffs used the testimony, in part, to show a pattern of reckless alcohol sales to minors in support of their punitive damages claim. This was permissible 'other acts' evidence used to demonstrate potentially reckless behavior by DelRois. The superior court did not give a limiting instruction to the jury about the permissible and impermissible uses of this testimony. Alaska Rule of Evidence 105 states that when evidence is admissible for one purpose but not another, the court shall restrict the evidence to its proper scope and instruct the jury accordingly-but only upon request. Here, DelRois did not request a limiting instruction, and thus cannot complain that none was given."

"When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. In cases tried to a jury, evidence inadmissible as to one party shall not be admitted as to other parties until the court has made all reasonable efforts to effectively delete all references to the parties as to whom it is inadmissible."

The key phrase here is "upon request," and because DelRois did not request a limiting instruction, it could not complain on appeal that one should have been given. At the same time, it seems to me that such a limiting instruction would have been futile. Alaska Rule of Evidence 404(b) states that:

"Evidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

Thus, for instance, the prosecution in a trial for safecracking could introduce the defendant's prior crimes of safecracking not to prove "Once a safecracker, always a safecracker," but to prove knowledge, i.e., that the defendant knew how to crack safes. And defense counsel could ask for a limiting instruction stating:

"You have heard evidence of acts of the defendant other than those charged in the indictment. You may consider this evidence only on the question of knowledge. You should consider the evidence only for this limited purpose."

Now, you might question whether jurors would follow such a limiting instruction, but the instruction at least seems to make sense in terms of what the jurors should and should not consider.

But we can contrast this with the situation in Walker. The testimony by the other minors was not admissible to prove "Once an underage alcohol seller," but it was admissible to prove that DelRois had a pattern of selling alcohol to minors. Thus, a limiting instruction might have stated:

"You have heard evidence of acts of the defendant other than those charged in the indictment. You may consider this evidence only on the question of pattern (or common plan or scheme). You should consider the evidence only for this limited purpose."

A limited purpose indeed! Now, it is true that there is a legal distinction between propensity/conformity evidence and pattern/common plan or scheme evidence. But even legal experts struggle with the nature of this distinction, and I don't see how a limiting instruction such as the one listed above would be helpful in any way to the defendant/jury.

The recent opinion of the Court of Appeals of Texas in Burks v. State, 2008 WL 5341296 (Tex.App.-Houston 2008), teaches an important lesson, which is that, in order for a criminal defendant to be able to appeal a court's ruling regarding the admissibility of his prior conviction(s) for impeachment purposes, the defendant must testify at trial.

In Burks, Devian Charles Burks appealed his conviction for assault. And part of his argument on appeal was that "the trial court committed reversible error by ruling that the State would be allowed to impeach him with the five prior convictions if he chose to testify at trial."

And indeed, at trial, over Burks' objection, the trial court ruled that it would allow impeachment of Burks through his prior felony convictions if he chose to testify (but the record did not show that the trial court determined whether it would permit impeachment with any misdemeanor convictions). The problem for Burks, however, was that he did not subsequently testify.

And while that might have been the best strategy at trial, it also foreclosed the possibility of Burks later appealing this evidentiary ruling on appeal. That is because, since the United States Supreme Court's opinion in Luce v. United States, 469 U.S. 38 (1984), courts have consistently held that a criminal defendant must testify at trial to be able to challenge a trial court's decision to allow the prosecution to impeach him through prior convictions.

And that is exactly what the Court of Appeals of Texas found in Burks. According to the court,

"[t]o preserve error on a trial court's ruling that permits the State to impeach a defendant with prior convictions, the defendant must have testified....A reviewing court is unable to weigh the probative value of the proffered testimony against its prejudicial effect without a factual record of the appellant's testimony at trial....Without such a record, there is no impeachment evidence for prior convictions and we cannot sufficiently review for error."

The recent opinion of the Court of Appeals of Minnesota in Custer v. State, 2008 WL 533517 (Minn.App. 2008), reveals that a statement can qualify as a co-conspirator admission if it is made before the subject crime is committed or during an attempt to conceal the crime after it has been committed, but with an important limitation.

In Custer, Raymond Custer appealed from his two convictions for first-degree controlled-substance crime. The facts of the case were as follows:

"On August 4, 2006, police arrived at Erik Michael Karlsen's farm to arrest him on an outstanding felony warrant. One officer heard voices coming from within a detached garage and could see that a light was on inside the garage. He looked through a hole in the north wall of the garage and saw Thomas Paul Mussehl and Custer inside the structure....One of the men was holding a beaker containing a dark chemical while the other man held a propane torch. The beaker was connected to a 55-gallon drum by a tube.

Three other officers later took turns looking through the hole in the wall. These officers saw Mussehl holding the beaker in one hand and a butane torch in the other. The flame was on, and Mussehl was holding the torch underneath the beaker while the contents of the beaker bubbled. The officers testified that Custer was standing near Mussehl, was not moving around the garage, and held some kind of white material in his hand.

After Karlsen was taken into custody, police ordered Custer and Mussehl to leave the garage. Custer came out of the garage upon their request. Mussehl did not come out of the garage, so the officers entered the building. Mussehl was seated, stirring the beaker, which had smoke coming out of it. Mussehl said that if he put the beaker down, it would explode. With the officers' permission, Mussehl poured water into the beaker and set it down. The beaker was later found to contain 10 milliliters (11.7 grams) of liquid methamphetamine."

After Custer was convicted, he appealed, claiming, inter alia, that statements made by Karlsen soon after he was taken into custody were improperly admitted. Specifically, a deputy testified over Custer's objection that while officers waited for the fire department to arrive at Karlsen's farm,

"Karlsen asked him if he could borrow the deputy's cell phone to call a friend to come and watch Karlsen's dog. The deputy testified that while Karlsen was talking on the cell phone, Karlsen said that 'Ray [Custer] and Tom [Mussehl] got caught cooking' in the garage."

The trial court had found that this testimony was admissible pursuant to Minnesota Rule of Evidence 801(d)(2)(E), which defines as nonhearsay a statement by the co-conspirator of a party "made during the course of an in furtherance of the conspiracy." But on appeal, even the state itself conceded that "the conspiracy had ended when Karlsen made his statement" because Karlsen had been apprehended.

On the other hand, the Court of Appeals of Minnesota noted that "statements made 'during the concealment phase of a conspiracy may be admissible under the co-conspirator exemption.'" But the court noted that there is an important limitation on this concealment rationale, which is that "'a conspiracy to conceal the commission of the charged crime may not be automatically implied to permit the use of hearsay statements made by co-conspirators.'" And the problem in Custer was that

"the district court did not determine that there was any conspiracy to conceal the manufacture of methamphetamine. Because there is no evidence that Karlsen's statement was made in the course of a conspiracy to conceal, the district court abused its discretion by admitting the statement."

This seems like the correct analysis to me, and it seems like the Court of Appeals of Minnesota had no other choice but to find that the trial court made the incorrect evidentiary ruling. (In the end, the court still affirmed because there was significant other evidence of Custer's guilt, including his own confession).